Observations of the legal scene from the Cornhusker State, home of Roscoe Pound and Justice Clarence Thomas' in-laws, and beyond.

Wednesday, March 01, 2006

Scottsbluff police search warrant for narcotics in duplex lacked probable cause to search separate apartment, but Nebraska Court of Appeals (J Irwin) allows evidence on Leon "good faith."State v. Tompkins, 14 Neb. App. 526
Filed February 28, 2006. No. A-05-212. Police obtained search warrant for suspected narcotics activity in a Scottsbluff duplex, based on citizen reports of suspicious activity, police surveillance and searches of garbage from duplex. Court of Appeals found that search warrant lacked probable cause because although police had information of suspcious activity, there was no probable cause to search the defendant's apartment in duplex. Still police had good faith belief that warrant was valid and court allows evidence; Court found that issue of probable cause for searching entire duplex was an open question at the time of the searc.

At the time of the issuance of the search warrant in this case, no Nebraska case directly on point existed regarding an issue of first impression: whether, in the context of facts such as those of the present case, an affidavit in support of a search warrant for multiple individuals and multiple residential units contains a substantial basis for determining that there is probable cause specific to one of those individuals. We cannot conclude that a law enforcement officer who had reasonable knowledge of what the law required regarding probable cause relating to multiple suspects and multiple residential units would, at the time of the execution of the search warrant in this case, have been unreasonable in relying in good faith on the warrant issued by the magistrate in this case.
Additionally, the information Overman presented to the issuing judge was not completely devoid of indicia of probable cause, and such information, viewed as a whole, arguably supports the conclusion that there was a fair probability that evidence of illegal drug activity would be found at Tompkins' and Snow's residences. See, United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); State v. Davidson, 260 Neb. 417, 618 N.W.2d 418 (2000); State v. Edmonson, 257 Neb. 468, 598 N.W.2d 450 (1999). Therefore, we conclude that there was an objectively reasonable basis for believing that the warrant was valid.